(dissenting). In this article 78 proceeding I must dissent and vote to annul the determination of the State Bent Administrator and to remand with a direction that a certificate of eviction be issued.
The Local Bent Administrator, after an examination of the facts, granted a certificate of eviction. On the tenant’s protest, the State Administrator reversed the local Administrator and vacated the certificate. Special Term denied the application to review and annul the determination, and dismissed the petition.
The petitioner is the owner of 1150 Fifth Avenue, a luxury apartment house. The tenant intervenor occupies apartment 7B, consisting of nine rooms, at a controlled rental of $239.56 per month. Included in the room count are two bedrooms referred to throughout the proceeding as maids’ rooms.
The proceeding for a certificate of eviction is predicated upon section 57 of the State Bent and Eviction Begulations promulgated pursuant to the rent and eviction statutes (State Besidential Bent Law, § 5, subd. 3; L. 1946, ch. 274, as amd.). In substance, the regulation provides that where the landlord seeks, in good faith, to alter or remodel an under-occupied accommodation containing six or more rooms, a certificate may issue. It states that: “ An apartment may be deemed under-occupied when there is less than one occupant for each room, exclusive of bathrooms, kitchen, and three additional rooms. Boomers or boarders who are not members of the tenant’s family shall not be counted as occupants.”
*177The only question posed here is under-occupancy. The tenant’s family consists of father, mother and daughter. To be deemed under-occupied, pursuant to the regulation, the family unit in the apartment in question could not be composed of more than four people. The tenant employs one full-time sleep-in maid who occupies one of the two bedrooms hereinabove mentioned. There is another maid, Margaret Maseall, who is regularly employed and is claimed as a member of the family unit by the tenant. This claim is strenuously opposed by the landlord. Whether the family unit comprises four or five people is, therefore, the nub of the dispute. The State Bent Administrator, in denying the certificate, has held that this employee has the status of sleep-in maid and is to be included as a member of the family unit.
There is no dispute that Margaret Maseall has since 1936, long-before she started her employment with the tenant, maintained an apartment at 60 West 119th Street. She receives her mail, pays the rent and has an elderly aunt living with her at that address.
To overcome this uncontroverted proof, it is urged that she maintains that apartment because her relative cannot live alone, that she occupies the room in the tenant’s apartment whenever she can, or when the daughter’s health requires it, or for rest periods during her hours of employment. The record discloses, however, that from March 28 to August 18,1958, a period of four and a half months, she slept in that room only four times. It also appears that the examiner “ finds that the maid, Margaret Maseall, is not a regular sleep-in maid.” In my view, this employee is nothing other than a day worker as the term is commonly used by housewives in New York City.
The fact that there happens to be a spare room, otherwise unoccupied, in this large apartment, should not be permitted to be used as a subterfuge by the tenant to circumvent the Administrator’s interpretation of his regulations. Moreover, the Administrator overlooks the difference between the designation, on a floor plan, of a bed chamber osa“ maid’s room ” and its irregular and sporadic occupancy by a day worker.
Of course, a maid or other domestic employee is not generally considered a member of the family or of the family unit in the household wherein that person is employed. For the purpose of the eviction regulations the inclusion of such an employee as a member of a family unit may be appropriate under proper circumstances. The unrestricted inclusion of casual employees and those not actually in residence would nullify and defeat the legislative intent to make additional housing units available where, *178as here, the landlord proposes to create two separate self-contained units.
To determine whether the Administrator is exercising permissible discretion, it is appropriate to examine the interpretation given to the regulations by the commission. In discussing section 57, the Administrator in his Opinion No. 55 states ‘1 For example the Administrator may determine that a full-time maid or servant who sleeps in is an occupant and part of the family unit for the purposes of this section * * * ” (emphasis supplied). It is evident from the foregoing, that the Administrator does not assume that he is required or mandated to hold that full-time sleep-in maid must be included in the count of a family unit in assessing the question of under-occupancy.
Assuming arguendo that the Administrator is correct and that he may exclude a sleep-in maid from the family unit count, then the inclusion of Margaret Mas call is not in keeping with any consistent standard, and leaves the impression that determinations of this nature may be made on an ad hoc basis.
In Matter of Freymann v. Weaver (8 A D 2d 704), in which we sustained the Administrator’s determination, he held, in substance, that a woman who occupied a room in an apartment and received a small weekly stipend in exchange for tutorial service and dance instruction was not to be counted as a member of the family, since .she was permitted outside employment and was not required to sleep in. One of the factors which the Administrator took into consideration was that the employee was not required to sleep in. Although that is the precise situation here, it appears to have been overlooked by the State Administrator.
Under the circumstances, in my opinion, the denial of a certificate by the State Administrator was arbitrary and unreasonable.
Rabin, "Valente and McNally, JJ., concur with Botein, P. J.; M. M. Frank, J., dissents and votes to remand in opinion.
Order affirmed, on the facts and on the law, with $20 costs and disbursements to the respondents.